Philanthropy’s opportunity to protect the right to vote

The Voting Rights Act of 1965 (VRA) is a landmark piece of legislation that outlawed racially discriminatory practices used to disenfranchise African Americans. Despite passage of the 14th and 15th Amendments to the Constitution, African Americans were denied the right to vote based on race, especially in many southern states.

On June 25th, the Supreme Court struck a blow to civil rights in its 5-4 decision in Shelby County v. Holder. By ruling that Section 4 of the VRA, which established the formula to determine the states and jurisdictions that need federal approval for any changes to voting laws, is unconstitutional, key provisions of the VRA that protected historically disenfranchised populations have been gutted. Specifically, it is the undoing of the “preclearance” requirement as held in the original VRA. Preclearance required those local governments and states with a history of voting discrimination to get federal approval before making any changes to their voting procedures and laws. Although the Court’s decision does not nullify this section of the VRA, it won’t be implementable unless Congress enacts a new statute determining which states and individuals it applies to.

In 2006, the VRA was reauthorized for an additional 25 years. In 2007, the House passed a bill reauthorizing the preclearance provisions by a significant majority based on a prolific legislative record. The Senate voted 98 to 0 and the House voted 390 to 33 to uphold the preclearance requirement, a strong indicator that disenfranchisement based on race, literacy or any other basis still requires federal oversight. Moreover, in Chief Justice John G. Roberts, with a lengthy history of attempting to undermine the VRA, stated:

“In assessing the ‘current need’ for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. … Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.”

Nobody would dispute that history since 1965 can or should be ignored. But when you look at some quick voting-related facts, it is clear that the VRA should have been left in its original state. For example, attempts to institute cumbersome identification requirements in states such as Georgia and North Carolina have been proven repeatedly to have disparate impact on underserved communities, including those with limited English proficiency and communities of color, and on electoral outcomes given that these disenfranchised populations tend to vote for Democrats. For example, in Alabama, only 15 percent of white voters compared to 40 percent of the white voters nationwide voted for President Obama. Attempts to disenfranchise communities of color in Florida have also been documented broadly. In short, while things have changed in the last few decades, some disparities have also stayed largely the same, if not exacerbated.

The right to vote is the most fundamental way in which citizens have a voice in our democracy. In addition to Congress needing to reinstate the key provisions of the VRA, it is imperative that nonprofits working on voting rights issues be provided with the kinds of support they need to complement the hoped-for statue.

Philanthropy has an opportunity to contribute to the public good by helping to restore implementation of the now-gutted provisions. And grantmakers must consider that the Court’s ruling is likely an outcome of a sustained, well-funded movement among conservatives to roll back provisions of the VRA and the Civil Rights Movement.

The lesson we should all take from this is that change is possible and Dr. King’s dream is still alive. But it is only possible if grassroots and grass-tops groups that work on civic engagement issues and legislation have sustained funding and engagement with their constituencies.

Will your foundation commit to protecting the right of all Americans to participate in our democracy?